Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27

Reported Decision: 74 NSWLR 370[2009] ALMD 2781[2009] ALMD 2782[2009] NSW Title Cases 80-13014 BPR 26,523

New South Wales Court of Appeal

CITATION: Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27

HEARING DATE(S): 16 December 2008

JUDGMENT DATE: 25 February 2009

JUDGMENT OF: Hodgson JA at 1; Basten JA at 54; Handley AJA at 113

(1) Leave to appeal granted, notice of appeal to be filed within fourteen days. DECISION: (2) Appeal allowed. (3) Orders of Malpass AsJ set aside, and in lieu thereof order that Ms Dimitriou's summons be dismissed with costs. (4) Ms Dimitriou to pay the Owners Corporation's costs of the application and appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

CATCHWORDS: REAL PROPERTY – Strata Titles – Recovery by owners corporation of contributions and expenses under s 80 of the Strata Scheme Management Act 1996 – Whether expenses include legal costs – If so, what legal costs may be recovered – Whether such costs must be claimed in the proceedings for recovery of contributions.

Civil Procedure Act 2005 (NSW), s 98(1)(a) and (b) Commerce Act 1986 (NZ) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) District Court Act 1973 (NSW), s 148B Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 16(2) and 43A Fair Work Act 1994 (SA), s 173 Interpretation Act 1987 s 33 Judiciary Act 1903 (Cth) LEGISLATION CITED: Legal Profession Act 1987 (NSW) Legal Profession Act 2004 Local Courts (Civil Claims) Act 1970 (NSW) (the "Civil Claims Act"), s 34(1) Local Court (Civil Procedure) Rules 2005 Residential Tribunal Act 1998 (NSW) Statute Law (Miscellaneous Provisions) Act 1997 (NSW), Sch 1.23 [12] and [13] Strata Schemes Management Act 1996 Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth), s 51(1)(b) Uniform Civil Procedure Act 2005